NONCLAIM, STATUTE OF. 1. In case of mortgage. See VENDOR'S LIEN, 3. In a proceeding to foreclose a mortgage, or in any action asserting an original, specific, and absolute charge on the land, the plea of the statute of nonclaim is not available, nor is any affidavit of nonpayment or justness necessary. Hall v Denckla et al., 2. Of vendor's lien. 506 The vendor's equitable lien is within the statute. Linthicum, Ex'r, et al. v. Tapseotl, Adm'r, et al., NOTICE. See RECORD. VENDOR'S LIEN, 2. 267 NOVATION. See CONTRACT, 2. OFFICE. SUPERVISORS AND CIRCUIT CLERKS: Offices of, not incompatible. Millen was appointed and qualified as supervisor; subsequent thereto he accepted the office of deputy circuit clerk. On quo warranto, and plea that the duties of the two offices were incompatible and within the prohibition of sec. 2, art. IV of the constitution: Held, that the functions exercised by a supervisor are chiefly ministerial, and those of the clerk wholly so, and the discharge of the duties of the two offices, by the same person, is not incompatible or repugnant. State ex rel. v. Feibleman, 424 OFFICERS. PARTIES. See APPEAL, 4. PRACTICE, 7, 8. VENDOR'S LIEN, 4. 1. When petition to be made party to a suit denied. In a suit for the possession of land, after appeal to this court and man date sent down, a third party, showing no interest in common, or privity of right between himself and the other litigants, but claim. ing an independent ownership, petitioned to be made a party defendant: Held, that the petitioner had no right to be made a party to a suit only involving the right of possession between the other litigants, and the court should have disallowed his petition. Files v. Watt, 2. Who necessary, etc. 151 All persons interested in the subject matter of a suit should be made parties plaintiff or defendant, and where a party so interested is brought upon the record, and a decree rendered against him without service of process, such decree, though not void, is voidable and reversible on appeal. Holland and wife v. Burris, 171 PARTNERSHIP. See AGENCY, 2. PAYMENT. See MORTGAGE, 1. 1. PROMISSORY NOTES: When possession of, by payee not evidence of non payment. The possession of a note by a payee is prima facie evidence of nonpay. ment, but when such note was given as security for future advances by the payee on general account, and when such general accounts are rendered, the payor is charged with the amount of the note, which constitutes the security for the items of the accounts, and is given credit for assignments, etc., which go to the reduction of the general indebtedness, it will be considered as evidence of payment, if such credits are equal to the debits, or if not equal, pro tanto, and will rebut the presumption of nonpayment raised by the possession of the note by the payee. Davis et al. v. Gaines, 440 2. PAYMENTS ON GENERAL ACCOUNT: When appropriated by law, to what items of account applied. The rule in the state of Louisiana as to payments made on general account, where no appropriation has been made either by debtor or creditor, is, that such payments, when appropriated by law, should be made to those items of the account most onerous to the debtor, and which it is most to his interest to have discharged. Ibid. PLEADING. See LIMITATIONS, STATUTE OF, 1. 1. In suit against corporation, etc. In suits against corporations, it is not necessary to allege in the complaint the incorporation, further than by a statement of the corporate name. Odd Fellows Building Association v. Hogan, 261 2. When use of abbreviations will not vitiate. Where abbreviations or initials of words are used in pleadings, if when taken in connection with the remainder of the pleading and subject matter, they can be clearly understood, and not be ambigu. ous, the same effect will be given to them as if the words were written in full. Ibid. 3. LEGISLATIVE ENACTMENTS: Unconstitutionality of, how pleaded. Where a party relies upon the fact, that an act of the legislature was not constitutionally passed, as that the act was not read three times on different days, the fact that it was not, instead of the pleader's information and belief, should be unequivocally averred⚫ State ex rel. v. Tuffts, 502 POWERS. See TRUST DEED. PRACTICE. See ADMINISTRATION, 2. APPEAL, 3. BILL OF EXCEPTIONS, 3. CERTIORARI, 1. INSTRUCTIONS, 2. VENUE, 1. 1. IN SUPREME COURT: Judgment affirmed though some error appear. Where several instructions are given, though there be error in some, yet, if the judgment upon the whole record is right, it will be affirmed. Pike et al. v. Douglass & Co., 59 2 When cause dismissed after submission. Where a cause has been submitted and it appears that the transcript was not filed within three years after the rendition of the judgment, and no extension of time was asked for the filing of the same, the submission will be set aside and the cause dismissed. Reynolds, Ex'r, use, etc., v. McCallum, Adm'r., 453 3. When record not filed twenty days before commencement of term. The provisions of sec. 876, Civil Code, as to the time when appeals shall stand for trial are directory; and when the record has not been filed in the clerk's office more than twenty days before the commencement of the term, but the appellee has been summoned over twenty days before the submission of the cause on the part of the appellant, the case may be properly disposed of at that term. Pierce v. Lyman et al., 550 4. IN CIRCUIT COURT: In trial of issues of fuct by the court, what should be stated in writing. In trials of issues of fact by the court, the facts should be found and stated in writing, and such statement should be separate from the conclusions of law declared, and the record on appeal ordinarily should show the facts and conclusions of law so stated and declared, where the same are excepted to. Wood et al. v. Boyd, 5. Where damages excessive. 75 Where the damages are excessive, the defendant should move the court to set aside such excess in order that the plaintiff may have an opportunity to remit before being taxed with the costs of an appeal. Johnson v. Barbour, 188 6. Where form of verdict or judgment objectionable. Where the form of the verdict is objectionable, or the proper judgment is not rendered upon the verdict, such objection should be pointed out to the lower court, before appeal granted. Ibid. 7. Administrator ad litem. Where a party plaintiff or defendant dies pendente lite, the court before which such cause is pending has power to appoint a special administrator to conduct or defend the cause. Mangum et al. v. Cooper, Adm'r, 8. When joint obligation sued on. 253 Where the obligation sued on is joint, the court, in its discretion, may render judgment against one defendant, leaving the action to proceed against the other. Parke v. Meyer, 281 9. MISJOINDER OF ACTIONS: Waiver of. Under the Code of Practice, objections for misjoinder of causes of ac tion are to be considered as waived, unless a motion is made to strike out the causes of action improperly joined. Crawford v. Ful ler & McKibben, 370 10. Mistake in kind of proceedings, how corrected. Under the code of practice, if a party commit an error in the kind of proceedings adopted, he may change and have the same transferred to the proper docket, either before answer filed, without motion, or after, on motion; but the court is not bound to make the transfer unless asked to do so by the party desiring it, and may dismiss the complaint without prejudice. Berry, Adm'x, et al. v. Hardin et al., 458 11. When defendant may be required to produce his evidence first. On plea of failure of consideration, where the burden of proof in the whole action seems to rest upon the defendant, it is not improper for the court to require him to produce his evidence first. Pierce v. Lyman et al., 550 PROBATE COURT. See CHANCERY JURISDICTION. LIEN, 2. PROCESS. See PARTIES, 2. Service of summons by unofficial person, etc. Under section 65, Code of Practice, an unofficial person may be au thorized to serve process; but, to make such service binding, the correctness of the return must be verified by the oath of the party making the same. The mere recital, in the formal part of a judgment or decree, that the defendant was legally served with notice, is not a necessary part thereof; the record made by the official indorsement of return upon the writ is the proper evidence of due service, and, when it appears from such return that no sufficient service has been had, the court acquires no jurisdiction of the person of the defendant. Coffee v. Gates & Bro., PROHIBITION. 43 Effect of to stay proceedings. While there may be some doubt as to the propriety of a judge proceeding in a cause after he has notice that an application for a writ of prohibition will be made to a supervisory court, yet we do not think the mere filing of such application in the office of the clerk, and notice of it to the judge, will necessarily have the effect to stop all proceedings. Henry et al. v. Steele, Judge, PROMISSORY NOTES AND BILLS OF EXCHANGE. See MERGER. PAYMENT, 1. 455 |